It is a simple fact of life that two households are much more expensive to run than one. It is not uncommon for one party, usually that party who has been the primary homemaker and carer of the children, to struggle after separation.
It may be possible for the struggling party to apply to the Court for spousal maintenance for their support from the other party. Spousal maintenance is different and distinct form child support.
Spousal maintenance can be paid in many forms including:
- Making mortgage payments for the home in which the other party lives;
- Paying various expenses of that party such as vehicle expenses, utility expenses and the like;
- Paying a sum of money on a periodic basis;
- Paying a “lump sum” amount of money.
In order to be eligible for Spousal maintenance:-
- a spouse must be unable to support themselves; and
- the other spouse must have the capacity to assist them financially.
If you cannot agree on the payment of spousal maintenance then you must apply to the Court and you must do so within 12 months of the date of Divorce.
When determining whether or not a spouse can support him or herself the Court must disregard any entitlement of the Applicant to an income-tested pension, allowance or benefit.
When considering whether spouse maintenance should be paid and the amount of spouse maintenance, the Court takes into account factors detailed in section 75(2) of the Family Law Act 1975 which include:
- the age and state of health of each of the parties;
- the income, property and financial resources of each of the parties;
- the physical and mental capacity of each of them for appropriate gainful employment;
- whether either party has the care or control of a child of the marriage under the age of 18 years;
- a standard of living that in all the circumstances is reasonable; and
- the extent to which the Applicant has contributed to the income, earning capacity, property and financial resources of the other party; and
- the duration of the marriage and the extent to which it has affected the earning capacity of the Applicant; and
- the need to protect a party who wishes to continue that party’s role as a parent; and
- if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;